North Essex Partnership NHS Foundation Trust v Bone (Certification Officer)

A certificate of independence under section 8(1) of the 1992 Act is conclusive while in force, but it does not retrospectively establish that a union was independent at an earlier date. Protection under section 146(1) depends on the union being independent when the relevant membership or trade-union activity occurred.

Where a union’s independence is in issue, the statutory scheme reserves the fact-sensitive determination to the Certification Officer. A tribunal must stay proceedings rather than determine the issue itself. A later certificate cannot supply after-the-event protection for earlier conduct without clear statutory language requiring that result.

The Employment Tribunal upheld Mr Bone’s complaints that his employer had subjected him to detriments for activities in an independent trade union. During the employer’s appeal, the Employment Appeal Tribunal stayed the proceedings while the Workers of England Union applied to the Certification Officer for a certificate of independence.

The Certification Officer granted a certificate dated 27 June 2013. The central issue was whether that certificate established the union’s independence on 5 May 2010, when the alleged detriments occurred, and thereby preserved the Tribunal’s decision. The employer contended that it did not; Mr Bone relied on the certificate’s conclusive effect for all purposes.

1. Appeal allowed. The certificate of independence issued on 27 June 2013 did not establish that the union was independent when the alleged detriments occurred on 5 May 2010. The Tribunal therefore did not determine the employer’s substantive grounds of appeal.

2. Section 8(1) of the 1992 Act makes a certificate which is in force conclusive evidence that a trade union is independent. Its effect is not absolute across time. It remains subject to later withdrawal, cancellation or contrary certification, and it does not answer the distinct question of the union’s status before it was issued.

3. The statutory protection in section 146(1) requires independence at the time of the protected membership or activity. The same temporal reading is supported by the interim-relief provisions, which require certification that the claimant was a member of an independent union on the date of dismissal. The Tribunal applied Akinosun, [2013] UKEAT/0180, as support for construing certification provisions in the present tense.

4. The statutory stay prevents employment tribunals and the EAT from deciding the fact-sensitive issue of a union’s independence. That task belongs to the Certification Officer. A certificate granted after investigation decides the union’s position at the time of that decision; it cannot be used to invite the Tribunal to determine its status in 2010.

5. No clear statutory wording authorised retrospective protection. The appeal was therefore allowed on the procedural jurisdiction point, without a ruling on the merits of the detriment claims.

• Employment Appeal Tribunal — allowed the employer’s appeal after holding that the 2013 certificate did not retrospectively establish independence in 2010.
• Employment Tribunal — upheld detriment complaints on findings that the claimant had been deterred from activities in an independent trade union. The Tribunal had not first considered the statutory stay required where independence was in issue.